TONY ABACO NIGERIA LIMITED v. ACCESS BANK PLC
(2019)LCN/13538(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of June, 2019
CA/E/02/2014
RATIO
THE COURT HAS THE DUTY TO TAKE JUDICIAL NOTICE OF LAWS ,ENACTMENTS AND LEGISLATION
This is a Court of law. I am bound to take judicial notice of all laws or enactments and any subsidiary legislation made under them having force in Nigeria. See: Section 122 (2) (a), (b) and (e) of the Evidence Act, 2011.
Proceeding pursuant to the above powers and as urged by the defence counsel, I call in aid the Institute of Chartered Accountants of Nigeria Act, Cap 111 LFN 2004.PER ABUBAKAR SADIQ UMAR, J.C.A.
THE PROVISION OF THE ICAN ACT LFN 2004 AS REGARDS THE DUTY OF ICAN
The Act established the Institute of Chartered Accountants of Nigeria and charged the body with the general duty of
a. Determining what standards of knowledge and skill are to be obtained by person seeking to become members of the accountancy profession and raising those standards, from time to time, as circumstances may permit;
b. Securing in accordance with the provision of this Act the establishment and maintenance of the register of fellows, associates and registered accountants entitled to practice as accountants and auditors and the publication, from time to time, of lists of those persons.
See: Section 1 (1) (a) and (b) of the ICAN Act, Cap 111 LFN 2004.PER ABUBAKAR SADIQ UMAR, J.C.A.
EXPERT WITNESS: WHAT MAKES HIS OPINION ACCEPTABLE BY THE COURT
On the conditions to be satisfied before the opinion of an expert presented to the Court will be relied upon, this Court in the case of JALBAIT VENTURES (NIG) LTD & ANOR v. UNITY BANK PLC (2016) LPELR-41625(CA)held thus:
“It is now settled Law that for an expert report to be admissible and relied upon, the expert must be called as a witness more so where the report is of a scientific or technical nature which may be outside the knowledge of the Judge. See KAYDEE VENTURES v. MIN. FCT (2010) 7 NWLR (Pt. 1192) 171 SC, A.G.F. v. ALH ATIKU ABUBAKAR & ORS (2002) 4 SCNJ. 456. The party seeking to rely on such a report has an obligation to call the expert as a witness to subject him to cross-examination not only on the contents of the report, but also on his acclaimed qualification on the professional expertise in the field or the subject matter. The reasons for his opinion must also be scrutinized. He must state in evidence his qualification, and satisfy the Court that he is an expert in the subject which he is to give his opinion upon and state clearly the reasons for his opinion.(Underlining mine).PER ABUBAKAR SADIQ UMAR, J.C.A.
BURDEN OF PROOF: DEFINITION
In the case of KALA V POTISKUM (1998) 3 NWLR (540) 1 AT PAGE 17, the Supreme Court had defined the phrase “burden of proof” as follows:-
“The phrase “burden of proof” has three meanings, namely:- a) the persuasive burden. This is the burden of proof as a matter of law and pleadings; the burden of establishing a case whether by preponderance of evidence or beyond reasonable doubt. This is also referred to as the legal burden of proof. b) The evidential burden. This is burden of proof in the sense of adducing evidence. c) The burden of establishing the admissibility of evidence. See also Nwavu v Okoye (2008) 18 NWLR (1118) 29 at 64-5; Ajide v Kelani (1985) 3 NWLR (12) 248; Olusesi v Oyelusi (1986) 3 NWLR (31) 634.PER ABUBAKAR SADIQ UMAR, J.C.A.
THE ONUS OF INITIAL PROOF IN CIVIL MATTERS
The law is also settled that in civil cases although the burden of proof is not static, the onus of initial proof of an assertion is always on the plaintiff and does not shift until he has proved his assertion or claim on the balance of probability or preponderance of evidence. It is only after the satisfactory proof as required by law that the burden of proof would then shift and continues to do so depending on the state of the facts asserted in the pleadings of the partiesPER ABUBAKAR SADIQ UMAR, J.C.A.
WHERE A PARTY FAILS TO DISCHARGE BURDEN OF PROOF IN CIVIL MATTERS
Where a party fails to discharge the burden in accordance with the law, his opponent bears no burden to prove any fact and his case would be dismissed for failure of proof. (Underlining mine).PER ABUBAKAR SADIQ UMAR, J.C.A.
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria
Between
TONY ABACO NIG. LTD Appellant(s)
AND
ACCESS BANK PLC Respondent(s)
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Anambra State High Court, Onitsha Judicial Division, delivered by P.C. Obiorah J. on the 15th day of July, 2013 wherein the learned trial judge dismissed the claims of the Appellant in its entirety.
BRIEF FACTS OF THE CASE
The brief statement of facts that culminated into the instant appeal is that at all material times to the commencement of the suit which is the subject of appeal in this Honourable court, the Appellant and the Respondent had a Banker and Customer relationship.
By a Writ of Summons and Statement of Claim filed on the 26th day of April, 2010, the Appellant as Plaintiff in the court below commenced an action against Intercontinental Bank and by a Further Amended Statement of Claim filed on 12/07/2012, the Appellant sought for the following reliefs:
i. ?The sum of N3, 738, 602. 71 as at 4th November 2009 being excess interest, excess COT (Commission on Turnover) VAT on COT charged by Intercontinental Bank on the Plaintiff.
?ii. Interest at the rate of 30% from 5th November 2009 until judgment.
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iii. And thereafter interest on the judgment debt balance outstanding at the rate of 30% until total liquidation.?
The case of the Appellant was that it was originally a customer of Equity Bank of Nigeria Limited and enjoyed its loan facilities. The Appellant stated further that on the acquisition of the Bank by Intercontinental Bank, the Original Defendant at the court below, in 2006, its account was transferred to the Intercontinental Bank, which also inherited the loan. Thereafter, the acquiring bank continued to operate its account allowing the facilities granted to it to continue without any new application and as a matter of fact, enhanced the loan facility earlier held with Equity Bank from 35 million to N50 million as per an offer letter dated 4th May, 2006 at an interest rate of 19% and N3.00/mille commission on turnover.
It is also the case of the Appellant that by a letter titled ?RENEWAL of N50, 000, 000.00 OVERDRAFT FACILITY? dated 15th May, 2007, the loan facility was renewed under same terms and condition as it was in the year 2006 but enhanced to an amount in the tune of N70,000,000.00. The Appellant stated
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further by a letter dated 15th January 2008, the loan facility was again renewed at the same amount of N70, 000, 000.00 and that subsequently, the Respondent kept trying to increase charges on the COT from the amounts agreed upon and that each time, after negotiations between the parties, terms would be agreed and the loan facility continued. Further to this, the Appellant stated that for instance, in the year 2009, the Respondent sought to increase the lending rate to 30% as per its letter dated 31st January, 2009, a move which the Appellant said he protested. It is also the contention of the Appellant that despite its protest and contrary to the agreement of the parties, the Respondent kept charging an interest more than the rate agreed upon, sometimes up to 30%.
The Appellant stated upon being fed up with the bad faith of the Respondents in its operation of account and in refunding of excess charges, he was forced to close its account, liquidated its credit facilities and thereafter commenced the proceedings against the Respondent.
?
At the conclusion of trial and upon address by counsel to the Parties, the learned trial judge in his judgment at
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pages 463 to 487 of the records dismissed the claims of the Appellant.
The Appellant aggrieved by the decision of the court below appealed against same vide a Notice of Appeal dated 2nd day of September, 2013 and filed on 2nd day of October, 2013. The grounds of appeal without their particulars are to wit:
?GROUND ONE?
The learned trial judge was in error when he held that Exhibits B-B14 were admissible in evidence but that they had no probative value.
?GROUND TWO?
The trial judge was in error in holding that PW2 is not an accountant or auditor and the experience garnered by him in the practice of the profession was no practice at all.
?GROUND THREE?
The learned trial judge was in error when he held that Plaintiff did not discharge the burden of proving the excess charges computed by the Defendant on Plaintiff?s account.
?GROUND FOUR?
The trial judge was in error when he held as follows:
?I am not unmindful of the argument of the Plaintiff?s senior counsel that the evidence of the Defendant is full of abject admissions and contradictions. The
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law is that the Plaintiff must rely on the strength of its case and not on the weakness of the defence. In this case, which is based on computation of accounts on figures, the Plaintiff has the initial burden to show the court how it arrived at the sum claimed. This burden was not discharged in view of what I have said concerning PW2? and Exhibit B series.?
?GROUND FIVE?
The trial judge gravely misconceived the evidence let in the case when he held as follows:
?I must also add that I find the conduct of the Plaintiff in this matter tardy. Here is a party who conceived that the Defendant was levying excess charges on her account since 2007 as shown in Exhibits B series and has been complaining form that time, yet went ahead to liquidate the entire facility in 2009, without fuss. It is after she has fully paid back the money that she filed the present action, and what is more, based on the work of an unqualified person who claims to be an Accountant.? Which error occasioned a miscarriage of justice
?GROUND SIX?
The judgment is against the weight of evidence.?
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In line with the Rules of this Honourable Court, parties filed and exchanged their respective briefs. The Appellant?s brief was dated 10th day of February, 2014 and filed on the 14th day of February, 2014. A Reply Brief dated the 17th day of September, 2014 and filed on the 18th day of September, 2014. Both Briefs settled by PROFESSOR ILOCHI A. OKAFOR (SAN) were deemed properly filed and served by an order of this Honourable Court made on the 7th day of May, 2019. The Respondent?s brief on the other hand dated the 25th day of August, 2014 and filed on the 26th day of August, 2014 was deemed properly filed and served by an order of this Honourable Court made on the 7th day of May, 2019, the said Brief was settled by VICAR I. OGUAFOR ESQ.
The appeal was taken on the 7th day of May, 2019 wherein counsel to both parties adopted their respective briefs and made oral submissions in respect to their postures in the determination of this appeal.
?
Learned counsel to the Appellant in his Brief formulated three issues for the determination of this Appeal while Counsel to the Respondent merely adopted the issues as formulated by the Appellant. The issues so
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formulated before this Honourable court are:
a. ?Whether the Learned Trial Judge was right in holding that PW2 testified as an expert whereas he did not qualify to testify as an expert witness.
b. Whether the Learned Trial Judge ought to have discountenanced the probative value of Exhibits B to B14.
c. Whether the Appellant had succeeded in proving its case as Plaintiff at the lower court?
ARGUMENT ON ISSUES 1& 2
On both issues as argued together by both counsel, counsel to the Appellant began by referring this Honourable Court to the decision of the Court below with respect to the testimony of PW2 and submitted that the trial judge gravely misconceived the necessary issue to be decided. Counsel submitted further that the trial Court considered PW2 as an expert witness whereas the question to be decided by the Court was not whether PW2 can practice as an accountant in Nigeria or whether PW2 is qualified to practice as an accountant. It is the contention of counsel that the issue the learned trial judge should have determined in accordance with the extant provisions of the Evidence Act was whether PW2 is sufficiently
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skilled to give evidence in respect of issues bothering on the calculation of excess interest and COT charges levied on the Appellant. Counsel referred this Honourable Court to the case of AREWA ILES PLC V FINETEX LTD. (2003) 7 NWLR (PT. 819) 322 @ 333 and argued that before a person qualifies as an expert under the provisions of the Evidence Act, he must be skilled in the field in which he was rendering opinion. Flowing from the heels of the above submission, counsel submitted that the Evidence Act, an expert is not only a person who possesses academic qualifications but also a person who has acquired practical experience and is competent in that field.
?
Counsel submitted further that PW2 under cross-examination testified that he possesses a HND in accountancy and has practiced for over 20 years in the field of accountancy and that this testimony was neither contradicted not controverted. It is the contention of counsel that despite this, the learned trial judge held that since PW2 was not a member of ICAN or ANAN, he was not qualified to testify in the field, despite having 20 years practical experience in the field. Counsel submitted that the
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learned trial judge, having classified PW2 as an expert witness erred in law when he decided that there was no probative value to be attached to PW2?s testimony. Counsel submitted further that assuming but without conceding that the trial judge was not fully convinced of PW2?s qualifications to give evidence as an expert witness, he should not have discountenanced PW2?s evidence. Counsel submitted that the law is that in such a situation, PW2 should no longer be regarded as an expert witness but as an ordinary witness.
It is also the submission of counsel that the issue of qualification was not borne out of the pleadings of the parties but was raised for the first time under cross-examination. Counsel submitted further that the Respondents in its statement of defence never questioned the qualification or competence of PW2 to prepare Exhibits B to B14 but this was raised for the first time under cross-examination. Counsel referred this Honourable Court to the case of NWOFOR V OBIEFUNA (2011) 1 NWLR (PT. 1227) 205 and argued that it is trite that evidence given in respect of unpleaded facts goes to no issue. Counsel submitted that the
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question of qualification of PW2 was not in issue between the parties and there was not an averment in the parties? pleadings in this respect. Counsel submitted further that the trial judge erred in law when he admitted the evidence elicited under cross-examination and such evidence should have been discountenanced. It is the contention of counsel that the trial Court on the basis of holding that PW2 was not an expert, attached no probative value to Exhibits B to B14.
?
In response to the submissions and arguments of counsel to the Appellant, learned counsel to the Respondent submitted that the crux of the matter with respect to EXHIBITS B-B14 was whether the said exhibits were prepared by somebody who is properly qualified or licensed to practice and audit financial books and related standards. Counsel submitted further that by the law regulating the practice of Accountants in Nigeria, i.e. Institute of Chartered Accountants of Nigeria Act, Cap 111, Laws of the Federation of Nigeria, 2004 and Association of National Accountants of Nigeria Act, Cap A 26, Laws of the Federation of Nigeria, 2004, only certified and Chartered Accountants are allowed to
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practice as Accountants or Auditors in Nigeria (i.e. to prepare Audit or Verification of Financial Books, Records and Related Standards. On who is qualified to practice as a Chartered Accountant in Nigeria, Counsel to the Respondent made copious references to some of the provisions of the Institute of Chartered Accountants of Nigeria Act (ICAN) and the Association of National Accountants of Nigeria, Act Cap A26, Laws of the Federation of Nigeria, 2004. Flowing from the heels of the above statutory provisions, counsel submitted further that it is only Certified Chartered Accountants who are the only persons licensed and qualified to practice the profession of Accountancy in Nigeria to the exclusion of any other persons or body.
Counsel submitted that what then is the position of the Audit Report prepared by PW2 (Uche Okoye) in Exhibits B-B14 who held himself as an Accountant/External Auditor by his Written depositions before the Court below? Counsel submitted further that PW2 under cross-examination stated that:
i. ?That PW2 (UCHE OKOYE) has been in Accounting Profession for upwards of 20 years with HND Accounting as his qualification.<br< p=””
</br<
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ii. That PW2 (UCHE OKOYE) is not a chartered or qualified Accountant, rather, he is a student member of ICAN (Institute of Chartered Accountants of Nigeria).
iii. That PW2 (UCHE OKOYE) has no SEAL to sign an Audit Report.
On the strength of the above, counsel submitted that Exhibits B-B14 are void and a nullity having been prepared by a person who is not qualified to do so. Counsel submitted further that only members certified as chartered or as Accountants are the only persons allowed to practice accounting and to produce or verify audit reports to the exclusion of any other person. It is the contention of counsel to the Respondent that the Court below properly evaluated the evidence of Exhibits B1 ? B14. Relying on the case of MOGAJI & ORS V ODOFIN & ORS (1978) 4, SC 91 @ 93-94 argued that it is the law that in evaluation of evidence before a Court of competent jurisdiction, the principle is that the trial Court should put the entire evidence of the Plaintiff and the Defendant on an imaginary scale of justice to determine in whose favour the balance tilts.
?
Counsel submitted that the submissions of counsel to the Appellant to
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the effect that the Learned Trial Judge did not avert his mind to the evidence before the Court through PW2 (UCHE OKOYE) that he has practical accountancy for upwards of 20 years and that he was not a member of ICAN or ANAN does not hold water. Counsel submitted further that those submissions are not borne out of the records and pleadings of the Appellant as the nowhere in the Statement claim and the Written Deposition of PW2 (UCHE OKOYE) was it stated that PW2 had an HND degree in Accounting with 20 years? experience. It is the contention of counsel that the singular piece of evidence was elicited during cross examination of PW2 (UCHE OKOYE) and it is a wrong understanding of the law as canvassed that damaging evidence that emanated from cross-examination of PW2 should be discountenanced.
On the whole, counsel urged this Honourable Court to resolve this issue in favour of the Respondent and against the Appellant.
The Appellant in its Reply brief submitted that the issue before this Court is on the probative value ascribed to Exhibits B-B14 by the learned trial judge and not a question of admissibility as canvassed by the Respondent. Counsel
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submitted that in the absence of a cross-appeal, the Respondent had no basis to raise such issue in the instant appeal. Counsel submitted that Exhibits B to B14 were relevant in showing the excess charges forming the subject matter of the suit culminating into the instant appeal. Counsel submitted that DW1 DW2 who testified on behalf of the Respondent were not accountants, chartered or otherwise as they were merely officers of the Respondent bank, this if the Respondent?s logic should be applied, then the evidence of both DW1 and DW2 also ought to have been ascribed no probative value.
ARGUMENT ON ISSUE 3
Counsel to the Appellant referred this Court to the holding of the Court below at pages 486 and 487 of the Records and submitted that the learned trial judge himself agreed that the defence of the Respondents was weak and filled with abject admissions and contradictions. Counsel to the Appellant argued that where a Plaintiff alleging a fact pleads that fact and produces evidence in proof of it, the onus will shift to the Defendant to adduce evidence in rebuttal. He referred this Honourable Court to OLOWU V OLOWU (1985) 3 NWLR (PT. 13) 372, 389.
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Counsel submitted further that in the light of the said abject admissions in particular, the issue the learned trial judge ought to have decided was not if there were any excess charges but whether the Appellant had substantiated her claim in respect of the amount claimed as excess charges. It is the contention of counsel to the Appellant that the parties both in their pleadings and evidence agreed as to the interest rate and that Exhibits A and A1 showed the interest rate as 19% while Exhibits A3 and A4 showed 21.5%. Counsel submitted that the testimony of DW1 under cross-examination was to the effect that the relevant interest rate ?were at times 19%, 20% and 21% while DW2 under cross-examination answered that at all material time, there was no time the interest rate exceeded 20%.
?
Counsel submitted that it was clear that the Appellant had proved that the Respondent charged interest rate at any relevant period above the agreed rate. Counsel submitted that in the light of the admissions of the Respondent that it did make excess charges, it became incumbent on the Respondent to show exactly what the excess was. Counsel submitted further
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that it became incumbent upon the trial judge in the light of the material contradictions in the case of the defence to give a specific holding in respect of same. It is also the submission of counsel that the Appellant at the trial Court never sought declaratory reliefs and that it was wrong for the trial Court to hold that the Appellant needed to succeed on the strength of its own case and not on the weaknesses of the Respondent?s. Counsel submitted that there were a number of material admissions made in favour of the Appellant which the learned trial judge overlooked and that what is admitted need no further proof. On the whole, counsel urged this Honourable Court to resolve this issue in favour of the Appellant.
The Respondent counsel in response to the submissions above submitted that although in civil cases, the burden of proof shifts from the Plaintiff to the Defendant but that in the case at hand, the burden cannot shift as the Appellant had woefully failed to prove its case on preponderance of evidence before the trial Court and that the Respondent had nothing to prove in evidence in the rebuttal of same.
Counsel also submitted that
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the Respondent by the evidence of DW2 and EXHIBITS J AND H proved to the Court that no excess charges was levied on the account of the Appellant. Counsel submitted that at all material time in the case, the evidence of DW2 is to the effect that the Respondent charged interest rate on the Appellant?s account because interest fluctuates and that DW2 stated that the only higher interest was charged, same was corrected, terming same as ?Honest System Error? or ?Human Error?.
On the whole counsel urged this Court to resolve this issue in favour of the Respondent as evidence before the Court below was properly evaluated.
The Appellant in its reply brief submitted that the law is that what is admitted needs no proof. Counsel submitted that the Respondent having owned up to levying some excess charges on the Appellant, the learned trial judge ought to have found in favour of the Appellant, at least in respect of the sum admitted by the Respondent.
On the whole, counsel urged this Court to resolve the instant appeal in favour of the Appellant.
RESOLUTION
I have painstakingly read through the pages of the
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record of appeal before this Honourable Court and the adopted briefs of argument of counsel in support of their various contentions and postures in this appeal. The issues for determination canvassed are well examined and considered.
Generally, a Court ought to confine itself to the issues raised by the parties in the determination of matters. However, where the issues are pluralized, or fragmented, or couched in such a manner as to obscure the crucial and real issues that would properly, adequately and finally determine the dispute, the Court would be entitled to distill such or other issues from the Grounds of Appeal filed. In such a situation, the Court of Appeal has the power and discretion to formulate issues from the Grounds of Appeal, which will determine the vital question between the parties. See KALU V UZOR (2006) 8 NWLR (PT. 981) 66.
In effect of the above, I consider the issues stated below as being apt and germane for the determination of the instant appeal.
?Whether the Court below properly evaluated the evidence placed before it before dismissing the Appellant?s claims?”
I am of the opinion that the grouse of the
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Appellant in this appeal centers majorly on the evaluation of evidence by the trial judge. The Appellant is of the view that the Court was wrong to have ascribed no probative value to the testimony of PW2 and the Exhibits prepared by him evidencing the excess charged on its account by the Respondent. Secondly, the Appellant contends that by the admissions and contradictions of DW1 and DW2, the trial Court should have come to a rather different conclusion in its decision.
It is trite that evaluation of evidence and ascription of probative value is the primary function of the trial Court. The trial Court has pre-eminence in this area as he sees, hears and watches the demeanour of the witnesses and so is in a better position to believe or disbelieve the witnesses. MOMOH V UMORU (2011) 15 NWLR (PT 1270) SC 217; AGBI V OGBEH (2006) 11 NWLR (PT. 990) 65 @ 115 C-E. Generally, an Appellate Court will not disturb the findings of fact made by the trial Court which had the opportunity of hearing and observing the demeanour of the witnesses except where the trial Court failed to properly evaluate the evidence or to make proper use of the opportunity of seeing and
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watching the demeanour of the witnesses and the findings of the Court are perverse that the appellate Court can intervene. In MAFIMISEBI V EHUWA (2007) ALL FWLR (PT. 355) P562 @ 605G ONNOGHEN, JSC (as he then was) held thus:
“It is settled law that the evaluation of evidence and the ascription of probative value thereto reside within the province of the trial Court that saw, heard and assessed the witnesses and that where a trial Court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the appellate Court to substitute its own views for the view of the trial Court but the Court can intervene, where there is insufficient evidence to sustain the judgment, or where the trial Court fails to make proper use of opportunity of seeing, hearing and observing the witnesses or where the findings of fact of trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or are not supported by
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evidence before the Court.?
In this regard, the question therefore is whether (1) there was insufficient evidence to sustain the judgment of the lower Court or (2) whether the trial Court failed to make proper use of the opportunity of seeing, hearing and observing the witnesses or (3) whether the finding of fact of the trial Court cannot be regarded as resulting from the evidence or (4) whether the trial Court drew wrong conclusions from accepted evidence or has taken erroneous view of the evidence adduced before it or (5) whether its findings are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before the Court.
To start with whether the Court was right regarding its findings with respect of the evidence of PW2, the learned trial judge held extensively at pages 479 to 485 of the record that:
Like I said earlier, admissibility of evidence and the weight or value of the evidence are two different matters. The question of the value of Exhibits B to B14 now brings to fore the qualification of PW2. I have no doubt that PW2 came to Court to testify as an expert in the field of
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accountancy and auditing. In this regard, Section 68 of the Evidence Act, 2011 provides that:
68. When the Court has to form an opinion upon a point of foreign law, customary law or custom, or of science or art or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, customary law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are admissible. (underlined for emphasis).
In his written deposition of 26/4/10, PW2 introduced himself as an Accountant and Principal Consultant, Christazo & Associates Limited (Accountants and Investigators).” In paragraph 4 of the same deposition, he testified further as follows:
4. That I was appointed by the plaintiff as an external consultant and auditor to audit the balance plaintiff?s account and by virtue if this I am conversant with the facts of the case. I hereby attach and tender a copy of said appointment letter as exhibit.”
In his second deposition of 12/7/12, PW2 called himself the ?external and investigating Accountant of the
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Plaintiff Companys Account with the defendant bank.
The agitation of counsel for the parties is whether PW2 is qualified to do what he did as he presented himself to the Court. I wish to observe that all through his written depositions, PW2 did not state his academic qualifications or membership of any association that qualifies him to practice as an accountant or auditor. It was during cross-examination, while undergoing questioning concerning his qualifications, that he told the Court that he has HND in Accountancy and has been in the Accounting profession for more than 20 years. He admitted that he is neither a member of ICAN or ANAN and that he has no seal. He called himself a student of ICAN.
By Section 68 of the Evidence Act, 2011, I am to form an opinion on PW2 as to whether he is an expert or not. The main issue is whether PW2 has shown the Court that he is specially skilled in the field of Accountancy and Auditing. I have no doubt that skill is not strictly speaking a matter of academic qualification, it is a matter which the expert will demonstrate before the Court by leading evidence on his academic or
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professional qualification, or knowledge and experience in the subject of his work and opinion, and such evidence must be credible
Other than his ipse dixit evidence under cross-examination that he has HND in Accountancy and has been in practice of Accountancy for more than 20 years, PW2 did not produce any iota of evidence to prove that assertion. Such qualification is not what the Court will believe that PW2 has when the alleged HND certificates which may form the starting point in calculating the number of years of PW2?s practice or the school that issued it, is not in evidence.
Learned senior counsel for the plaintiff has argued that expertise is not founded solely on academic qualification or possession of certificates, diplomas or degrees and that experience acquired over a sufficient period of time is more crucial and relevant. I agree with the Learned Senior Advocate of Nigeria, but with the rider that in the instant case, PW2 said he has HND in Accountancy which is what qualifies him to call himself as Accountant and Auditor.
This is a Court of law. I am bound to
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take judicial notice of all laws or enactments and any subsidiary legislation made under them having force in Nigeria. See: Section 122 (2) (a), (b) and (e) of the Evidence Act, 2011.
Proceeding pursuant to the above powers and as urged by the defence counsel, I call in aid the Institute of Chartered Accountants of Nigeria Act, Cap 111 LFN 2004. The Act established the Institute of Chartered Accountants of Nigeria and charged the body with the general duty of ?
a. Determining what standards of knowledge and skill are to be obtained by person seeking to become members of the accountancy profession and raising those standards, from time to time, as circumstances may permit;
b. Securing in accordance with the provision of this Act the establishment and maintenance of the register of fellows, associates and registered accountants entitled to practice as accountants and auditors and the publication, from time to time, of lists of those persons.
See: Section 1 (1) (a) and (b) of the ICAN Act, Cap 111 LFN 2004.
It is needless examining the provisions of the Association of National Accountants of Nigeria Act, Cap A26 LFN 2004 which is
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similar recognition for members of ANAN. PW2 has already told the Court that he does not belong to ICAN or ANAN. It is very clear that the possession of an HND certificate in Accountancy or University degree, without membership of ICAN or ANAN, does not qualify a person to practice as an Accountant or Auditor in Nigeria. Here lies the difference between the study of regular and professional courses. In professional regulated courses like Law, Accountancy, Medicine, Engineering etc which are regulated by statutes, qualification and license to practice the profession is defined by the relevant statutes. Unless the statutory condition is met, no person is lawfully allowed to represent himself as a member of the profession. It is therefore preposterous for PW2 to claim before this Court that he is an Accountant. PW2 is not what he told the Court he is and the court cannot open its doors for quacks to erode the integrity of professions regulated by the Laws of the land.
In the light of my finding that PW2 is not an Accountant or Auditor, the issue of having specialized skill or experience in the practice of Accountancy is like a table without legs. If PW2 is
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not qualified as an Accountant, an experience garnered in the unlawful practice of that profession, which is quackery, in no experience at all. A quack cannot therefore be an expert as envisaged by Section 68 of the Evidence Act, 2011.
Relating my holding to the facts and evidence in this case, I come to the conclusion that though Exhibits B to B14 are admissible in evidence, but they have no probative value. The computations of the excess charges on the Plaintiff?s account of an unqualified person as well as evidence of PW2 on the account, lack credibility and is unreliable. I therefore resolve the issue under consideration in favour of the defendant.”
I took the painstaking effort to reproduce the lengthy decision of the Court below regarding the evidence of PW2 in the Court below. I am of the opinion that the trial Court eruditely and diligently considered the said issue and has left no stone unturned. All the trial Court need do was form an opinion regarding the evidence of PW2 who vide his written depositions, undoubtedly represented himself as an expert in the field of accounting. The trial Court not only formed an opinion as it was
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required under the provisions of Section 68 of the Evidence Act, the Court went ahead to give a constructive reasoning as to why it found the opinion of PW2 as unreliable and thus ascribed no probative value to same. If PW2 represented himself as an Accountant who is specially skilled in the said area, the question I ask myself is that upon the Court finding out in the course of trial that PW2 was not truly an Accountant as claimed, should the Court who is seeking to rely on his credible expert opinion in the resolution of the pending matter before it follow him blindly If I were to answer this a 100 times, my answer would always be in the negative!
I have no doubt in my mind that the trial Court?s decision on this issue is all encompassing, succinct and devoid of any shortfalls to warrant this Honourable Court disturbing them. The Court was right to have notwithstanding admitted the Exhibits B-B14 in evidence on the basis of their relevance and thereafter decide on not to ascribe any probative value to same. I also do not agree with counsel to the Appellant that the issues of PW2?s qualifications was not borne out of the parties pleadings,
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so such facts extracted under cross-examination goes to no issue. On the conditions to be satisfied before the opinion of an expert presented to the Court will be relied upon, this Court in the case of JALBAIT VENTURES (NIG) LTD & ANOR v. UNITY BANK PLC (2016) LPELR-41625(CA)held thus:
“It is now settled Law that for an expert report to be admissible and relied upon, the expert must be called as a witness more so where the report is of a scientific or technical nature which may be outside the knowledge of the Judge. See KAYDEE VENTURES v. MIN. FCT (2010) 7 NWLR (Pt. 1192) 171 SC, A.G.F. v. ALH ATIKU ABUBAKAR & ORS (2002) 4 SCNJ. 456. The party seeking to rely on such a report has an obligation to call the expert as a witness to subject him to cross-examination not only on the contents of the report, but also on his acclaimed qualification on the professional expertise in the field or the subject matter. The reasons for his opinion must also be scrutinized. He must state in evidence his qualification, and satisfy the Court that he is an expert in the subject which he is to give his opinion upon and state clearly the reasons for his opinion.?
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(Underlining mine).
This Court also held in the case of MUHAMMED & ANOR v. ADUDA & ORS (2009) LPELR-4554 (CA) held thus:
“Under Section 57(1) of the Evidence Act, the Tribunal is vested with the power to accept as relevant the opinion of persons especially skilled in the subject matter under consideration. The criteria upon which such a person may be accepted as expert and his evidence accepted are laid down as follows:- (1) He must state his qualification. (2) He must satisfy the Court that he is an expert in the subject, which he is to give his opinion. (3) He must state clearly the reasons for his opinion. These criteria are conjunctive and when any expert witness does not meet any of these the Court is at liberty to refuse to accept his evidence…?
For all these aforestated reasons, I cannot but agree with the learned trial Judge for declining to attach any probative value to evidence of PW2 together with the report prepared by him. The Appellant counsel also made heavy weather on the contradictions and admissions of DW1 and DW2 under cross-examination. In this regard, the Court below held at page 486 of the record that:
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I am not unmindful of the argument of the Plaintiff?s senior counsel that the evidence of the defendant is full of abject admissions and contradictions. The law is trite that the plaintiff must rely on the strength of its case and not on the weakness of the defence. In this case, which is based on computation of accounts and figures, the Plaintiff has the initial burden to show the Court how it arrived at the sum claimed. This burden was not discharged in view of what I have said concerning PW2 and Exhibit B series. I therefore hold that the Plaintiff has not proved the reliefs sought. Issue No. 3 is resolved in favour of the defendant.
In all, I hold that the claim fails due to lack of good evidence. It is hereby dismissed.?
While I agree with the Appellant that since the claims of the Appellant were not declaratory in nature, the trial Court therefore erred in law when it held that the Appellant was expected to rely on the strength of its case and not on the weakness of the defence. Notwithstanding, because the pith of the complaint in the issue is one of proof, the law is now common place that in civil actions, the initial
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burden of proof is on the person who asserts and against whom judgment would be given if no evidence at all was adduced on either side. The burden lies on whoever desires a Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, to prove that those facts exist. See Sections 131, 132and 133(1) of the Evidence Act 2011 (as amended). By the provisions of Section 134 of the Act, the burden of proof shall be discharged on the balance of probabilities in all civil proceedings.
In the case of KALA V POTISKUM (1998) 3 NWLR (540) 1 AT PAGE 17, the Supreme Court had defined the phrase “burden of proof” as follows:-
“The phrase “burden of proof” has three meanings, namely:- a) the persuasive burden. This is the burden of proof as a matter of law and pleadings; the burden of establishing a case whether by preponderance of evidence or beyond reasonable doubt. This is also referred to as the legal burden of proof. b) The evidential burden. This is burden of proof in the sense of adducing evidence. c) The burden of establishing the admissibility of evidence. See also Nwavu v Okoye (2008) 18 NWLR (1118) 29
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at 64-5; Ajide v Kelani (1985) 3 NWLR (12) 248; Olusesi v Oyelusi (1986) 3 NWLR (31) 634. The law is also settled that in civil cases although the burden of proof is not static, the onus of initial proof of an assertion is always on the plaintiff and does not shift until he has proved his assertion or claim on the balance of probability or preponderance of evidence. It is only after the satisfactory proof as required by law that the burden of proof would then shift and continues to do so depending on the state of the facts asserted in the pleadings of the parties. Where a party fails to discharge the burden in accordance with the law, his opponent bears no burden to prove any fact and his case would be dismissed for failure of proof. (Underlining mine).
Flowing from the above and from the totality of the evidence adduced at the Court below, I agree with the trial Court that since the action before it was based on computation of accounts and figures, the Appellant had the initial burden to show the Court how it arrived at the sum claimed. This burden was however not discharged.
?I have also gone through the testimonies of DW1 and DW2 at pages 504 to
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511 of the record to ascertain if there were truly admissions and contradictions by the said witnesses as submitted by learned counsel to the Appellant. I have perused the testimony of DW2 at page 510 of the record wherein learned counsel to the Appellant at the Court below, questioned the witness about some occasions where excess charges were levied on the Appellant?s account. DW2 in his testimony under cross-examination made some admissions that were in my opinion, left hanging in the air. (See page 510 of the record). However DW2 was further re-examined on this issue. DW2 under re-examination at page 511 of the record testified thus:
?Q. During the cross-examination you admitted that excess charges were made on the Plaintiff?s account. How much was that excess charge?
A. It was N232, 971. 68.
Q. What happened when you discovered the excess charges?
A. We credited the customer?s account immediately with the amount.?
?
I am of the opinion that the re-examination of DW2 laid the issue of admission to rest. On the issue of the contradictions in the testimonies of DW1 and DW2, I have duly examined their various
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testimonies to see if there are any major discrepancies capable to tilting the imaginary scale in favour of the Appellant but I find no major contradictions. A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them. Two pieces of evidence contradict one another when they are themselves inconsistent. A discrepancy may occur when a piece of evidence stops short of, or contains a little more than what the other evidence says or contains some minor differences in detail. It is only material contradictions that are to be considered. See NWANKWOALA V. FRN (2018) 11 NWLR Pt. 1631@414, Per Rhodes-Vivour, J.S.C.
By reason of the foregoing, I resolve the sole issue distilled by this Honourable Court in favour of the Respondent and against the Appellant.
I find no merit in this appeal and same is hereby dismissed. The decision of the Anambra State High Court, Onitsha Judicial Division, delivered by P.C. Obiorah J. on the 15th day of July, 2013 is hereby affirmed. I make no order as to cost.
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MONICA BOLNA’AN DONGBAM-MENSEM, J.C.A.: This appeal touches on a subject of specialisation – the banking profession. Conscious of this fact, the Appellant sought and alleged to have obtained the service of an expert.
However, that effort turned futile as the learned trial Court found that the Appellant as Plaintiff failed to discharge the initial burden of proof as is required in a civil matter.
My learned brother ABUBAKAR SADIQ UMAR JCA who prepared the lead Judgment has highlighted all the relevant pitfalls in the case of the Appellant as raised by the learned trial Judge. I too hereby affirm the decision of the trial Court in holding that the Appellant failed to prove his case at trial. See the case of U.B.N PLC V. RAVIH ABDUL & CO. LTD (2019) 3 NWLR Pt. 1659 page 203 at 215.
This appeal is hereby dismissed.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.
?For the more detailed reasoning in the lead judgment of my learned brother, I equally find the appeal
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totally devoid of merit and I dismiss it. I affirm the judgment of the trial Court.
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Appearances:
PROFESSOR ILOCHI A. OKAFOR (SAN)For Appellant(s)
VICAR I. OGUAFOR ESQ.For Respondent(s)
Appearances
PROFESSOR ILOCHI A. OKAFOR (SAN)For Appellant
AND
VICAR I. OGUAFOR ESQ.For Respondent
